The Colorado Judicial Branch has denied records under its new administrative records policies that other state agencies have or would have had to produce under the Colorado Open Records Act.

After the interim administrative records policy was instituted by Chief Justice Nancy Rice last month, Watchdog.org asked for a series of records that judicial officials had previously denied, citing the branch’s self-exemption from CORA.
Courtesy Judicial Department website
TIME KEEPER: Colorado Chief Supreme Court Justice Nancy Rice won’t release her calendar under the new records directive she signed in May.
Earlier this year, judicial officials denied access to documents pertaining to the costs to defend Aurora theater shooting suspect James Holmes, calendars for Rice to determine how much time she spends at work and even time sheets for a public defender employee who taught on state time. The new internal judicial policy did little to prompt the release of the information.

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Steve Zansberg, Denver media attorney and president of the Colorado Freedom of Information Coalition, said the denial of time cards departs significantly from what is public under CORA.

“With time absence reports, that is a very big difference,” he said. “The personnel exemption (in the judicial directive) is far broader than even the courts have recognized under CORA.”

Public defender training coordinator Ann Roan was noted in a Watchdog.org report as teaching classes on state time, and Watchdog.org wanted to know if she took vacation time or other leave to teach.

“The time card and time off requests for Ann Roan … are maintained in the OSPD personnel files,” wrote public defender general counsel Frances Brown, who works for Chief Public Defender Douglas Wilson, in denying access.

But Zansberg said CORA limits the personnel file exemption to home address, phone number and personal financial records. State agencies under CORA would have to provide time cards and other information, he said.

Zansberg said differences between state law and the denied administrative records are not as clear cut on the other judicial denials.

The public defender’s office denied any information about how much taxpayers are spending to defend Holmes, citing exemptions in the directive and attorney professional conduct rules.

Zansberg said he disagrees with the interpretation of attorney-client privilege, saying government attorneys regularly provide billing statements under CORA.

“I personally don’t believe attorney-client privilege covers the amount of money a client is paying an attorney in a case,” he said. “While I disagree with Mr. Wilson’s office, (the denial) wouldn’t be any different under CORA.”

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As to the request for calendars to determine how much time Wilson and Rice are working for taxpayers, both said the records are exempt from the judicial directive because of security concerns.

Before approving the directive, Rice added a provision allowing records denial if the custodian believes the records would compromise security, but her staff seemed to change its story over the past few months about the reason to deny Rice’s calendar. Watchdog.org initially asked for time cards and electronic key card logs for Rice under CORA and judicial officials denied access to the information.

Judicial attorney Terri Morrison in April denied the key card logs citing security concerns, but said the calendars weren’t available because of the judicial department’s exemption from CORA.
Photo Courtesy University of Colorado
EXEMPT STATUS: Chief Public Defender Doug Wilson’s office cited a number of exemptions in denying records of defense expenses and time sheets.
“The judiciary is not subject to CORA following a ruling by the Court of Appeals in the case of Gleason and Office of Attorney Regulation Counsel v. Judicial Watch, 292 P.3d 1044 (April 26, 2012),” she wrote.

After Rice signed the judicial directive, Watchdog.org asked for calendars under the directive and this time Morrison cited the security concern.

Wilson also cited security concerns, but still provided calendars for days he was teaching at the University of Colorado.

Zansberg said while state officials often provide state-maintained calendars, he has run into cases, like with the New Mexico governor’s office, who denied the information based on security concerns.

“A good number won’t give you future calendars, but if they’re withholding past calendars because of security concerns you have to ask if there’s a pattern of conduct which someone could anticipate future actions because there’s no security issue with historical events,” he said.

After Watchdog.org exposed the lack of transparency at the judicial branch, several lawmakers have vowed to introduce bills next year forcing judicial to comply with state open records laws.

Investigative Reporters and Editors, a nonprofit association of investigative journalists, named Colorado’s judicial branch as a finalist for the Golden Padlock award given to state agencies who withhold records and refuse to be transparent to taxpayers. The nomination was based solely on Watchdog.org’s reporting on judicial’s lack of transparency, but IRE named the Massachusetts State Police the winner this weekend as the most cloistered government agency.

Judicial officials did not respond to a request for an interview about their interpretation of the new directive.

Zansberg said other than writing about the denials, the only step appeal of the denial is to go to the Colorado judicial branch courts to sue for the records.

“There’s a right to challenge that they withheld the documents improperly,” he added.